Vanuatu Supreme Court dismissed on 24 June the Strike-Out Application against election petition lodged by former MP of Malekula Don Ken against MP Gracia Shaddrak (first respondent) who is the current Speaker of Parliament.
Acting on behave of the first respondent in this case No. 20/891 SC/CIVL, lawyer James Tari lodged an application to the Supreme Court to strike out the election petition on the basis that it was filed outside the time limit prescribed in subs. 57(2) of the Representation of the People Act (CAP.14) (the ‘Act’).
After the official declaration of 19 March general elections by the Electoral Commission on 6 April 2020 and after the publication of the official results in the Official Gazette on 8 April 2020, the petitioner filed the petition on 24 April 2020 disputing the election of the first respondent, Member of Parliament for the constituency of Malekula.
The petition alleges that the first respondent spent money in the form of cash donations and donations in kind in the period 22 January 2020 to 19 March 2020 being dates within the period commencing at the end of the life of Parliament to and including, the polling day, contrary to section 61 of the Act. Such non-compliance is alleged to have affected the result of the election.
Sections 61 and 61A of the Act provide:
61. (1) The election of a candidate may be declared void on an election petition if it is proved to the satisfaction of the Supreme Court, that-
(a) the candidate or any agent of the candidate has contravened section 61A, 61B or 61C;
(b) there has been such non-compliance with the provisions of this Act, in the conduct of polling or in any, other matter that such non-compliance affected the result of the election;
(c) the candidate was at the time of his election a person not qualified or disqualified for election; or
(d) there was such irregularity in the counting of the votes as may reasonably be supposed to have affected the result of the election.
(2) Despite subsection (1), if on an election petition, the Supreme Court finds that there has been failure to comply with any provision of this Act, but the Court further finds that:
(a) it is satisfied that the election was conducted in accordance with the principles laid down in this Act; and
(b) such failure did not affect the result of the election, the election of the successful candidate is not to be declared void.
61A (1) A candidate for election must not spend, allocate or otherwise disburse to the constituency in which he or she is a candidate, any money, whether in the form of:]
(a) his or her representation allowance-if the candidate is a member of Parliament; or
(b) any money obtained from any other source of funding, whether in the form of:
(i) cash donations; or
(ii) donations in kind,
from the period commencing at the end of the life of Parliament or at the date of the dissolution of Parliament under subarticle 28(2) or (3) of the Constitution, to end including, the polling day.
(2) For the purpose of this section,
donations in kind includes, but is not limited to, food or food products, transport, transport fares, machinery, cooking utensils, building materials and furniture.
The first respondent’s defence submitted that subs. 57 (2) of the Act required that the petition be filed within 21 days of the alleged payments of money or other reward set out the petition. The alleged payment was made on 19 March 2020 therefore the petition had to be filed by 8 April 2020. He relied on the decision in Restuetune v Ati, Election petition case No. 20/911 (18 May 2020).
Ms Kaukare who represented the petitioner submitted that this proceeding had already been listed for hearing of the petition therefore a strike-out application was precluded. Further, that subs. 57(2) allowed a petition to be presented within 21 days of alleged payments that were made “after and election”. In the present case, the specific payments alleged were made before or on polling day therefore the petition was properly filed within 21 days in accordance with subs. 57(1) of the Act. She also submitted that in any event, the petition could not have been declared (this applied to all but the last 2 alleged payments).
The Supreme Court therefore considered that the payments alleged in this petition were all made in the period up to and including the polling day. In the circumstances, subs. 57(2) does not apply and the strike-out application is not made out. It is declined and dismissed.
The matter is listed for hearing of the petition at 9am on 29 June-3 July 2020 at Lakatoro Courthouse.